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Constitutional Law II
Villanova University School of Law
Graham, Tiffany C.



Constitutional Background

14th Amendment

i. “No state shall deny to any person the equal protection of the laws”
ii. intended to target race discrimination after Reconstruction

All people must be treated similarly unless the state has a reason for differentiating

Rational Basis Review


i. legitimate state purpose?
1. doesn’t have to be the real purpose, as long as there’s a plausible reason for the means chosen, upheld
ii. means rationally related?
1. doesn’t have to be the most efficient way, doesn’t have to solve the whole problem
iii. burden on plaintiff
1. plaintiff wants to get out of rational basis
2. try to show naked purpose to harm some group in society
iv. very deferential to gov’t

When applicable?

i. baseline level of review for social and economic legislation

Precedential Cases:

i. Railway Express Agency v. NY
1. Statute:
a. prohibits placement of ads for other companies on delivery trucks
b. classification because ads from truck’s company allowed, just not other companies
2. Gov’t justification: safety regulation, ads are distracting
3. Court:
a. rational basis review
i. there is a legitimate purpose
ii. the classification is rationally related because gov’t has offered research to show safety benefits
ii. United States Retirement Board v. Fritz
1. Statute:
a. eliminated retirement benefits for employees unless they have current connections or have worked for more than 25 years
2. Court:
a. rational basis review
i. no finding on Congressional intent, but upheld b/c they could find a rational basis
3. Dissent:
a. Court too deferential b/c Congress didn’t offer finding/intent
iii. United States Department of Agriculture v. Moreno
1. Statute:
a. to receive foodstamps you can’t have unrelated individuals living in a household
2. Court:
a. rational basis review
i. Congress says reason is to prevent hunger, malnutrition, strengthen economy, and avoid fraud. Secret rationale is to prevent communes
b. passes, there were reasons, even though it seems like Congress is going after hippies
i. hippies aren’t a suspect class, don’t received heightened scrutiny

Strict Scrutiny:


i. compelling state purpose?
ii. means narrowly tailored?
iii. heavy burden on gov’t
iv. presumption of unconstitutionality


i. under-inclusive
1. leaves people out that should be in the classification
ii. over-inclusive
1. classification sweeps too broadly (not narrowly tailored)

When applicable?

i. Generally: when classification has little to do with the purpose of the gov’t that Court is suspicious of classification
ii. If group falls into Carolene Products categories:
1. (a) discrete and insular minority
2. (b) history of discrimination
3. (c) lack of political power
4. (d) characteristics rarely, if ever, relevant to gov’t decision-making
5. (e) immutable characteristic


i. Carolene Products
1. Footnote 4:
a. establishes circumstances for when more searching review is required:
i. if statute violates C or B.o.R.
ii. if statute violates political processes
iii. if statute classifies based on race/religion/ nationality
b. because some groups cannot achieve political protection through traditional democratic processes so they need more protection (strict scrutiny)
ii. Facial Discrimination Cases
1. Korematsu
a. Exec. Order:
i. sets curfew, then criminalizes Japanese in certain territories, for Japanese descent
b. Court:
i. wants to be deferential to military, but classifications based on race are immediately suspect
ii. compelling gov’t interest?
1. national security, prevent espionage
2. gov’t shows this w/ military report, alleged history of espionage by Japanese (relies on Hirobayashi)
iii. means narrowly tailored?
1. can’t discern who is and isn’t loyal
2. great threat, need for broad exercise of power
iv. Court defers, passes strict scrutiny even though it’s a racial classification
v. Korematsu tried to argue overbreadth (sweeps in everyone only based on racial identity)
c. Dissent:
i. military justification just a pretext for discrimination
ii. not narrowly tailored (over-inclusive, sweeps in women, children, loyal citizens)
iii. under-inclusive (doesn’t sweep in Germans and Italians)
d. Impact:
i. never overruled, but never cited
2. Brown v. Board of Education
a. to overrule separate but equal from Plessy
b. look beyond tangible factors to show separate but equal can never be equal, psychological and emotional problems
iii. Affirmative Action: Facial Classifications based on Race
1. Bakke
a. System: UC Davis had minority set-aside
b. Court:
i. quotas not allowed , but you can have race-conscience policies if the purpose is to attain a diverse student body and race is a “plus factor”
ii. use strict scrutiny (although some argue for intermediate)
1. compelling interest: diversity in classroom can be compelling
2. narrowly tailored: has to be more narrow than using race w/o other considerations
2. Grutter v. Bollinger
a. L

discriminatory purpose
4. Arlington Heights
a. Classification: town denies zoning change because they only wanted single-family dwellings.
b. Factors to prove discriminatory purpose:
i. (1) disproportionate impact
ii. (2) pattern of discriminatory official actions
iii. (3) sequence of events
iv. (4) departure from normal sequence
v. (5) statements by officials
vi. (6) contemporaneous reports
c. based on totality of facts, was this neutral action not actually neutral?
d. if plaintiff proves it, can move into strict scrutiny
5. Feeney
a. automatic preference given to vets applying for jobs in MA, 98% of those applicants are male (so disproportionate impact in favor of males)
b. Court:
i. despite discriminatory impact, no showing legislature adopted measure in order to eliminate women from these jobs
ii. done in spite of the impact, so no heightened scrutiny
v. Legal Aliens
1. Generally:
a. alien: someone US has lawfully admitted to the country, although they remain citizens of other countries
b. 14th amendment protects “citizens,” so is “persons” interchangeable?
i. states generally limited in creating classifications based on citizenship
c. Analysis:
i. classifications based on alienage receive strict scrutiny, with Sugarman exception
1. political/public function exception
2. Sugarman v. Dougall
a. Classification: NY limits availability of civil service jobs to US citizens
b. Court:
i. Creates political/public function exception:
1. strict scrutiny for alienage unless the classification is related to the political/public function where the job at issue goes to the process of democratic self-governance
ii. under this analysis, NY classification fails for overbreadth, b/c not all civil service jobs involve political functions
iii. if state proves political function, then classification only analyzed under rational basis and generally upheld
vi. Fundamental Rights
1. to the extent that these cases involve discrimination regarding a fundamental right guaranteed by law, the Court usually uses amendment analysis instead of equal protection analysis
a. Structure: